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Education - Education Act - Exclusion of Students

. Alexander v. Renfrew County Catholic District School Board

In Alexander v. Renfrew County Catholic District School Board (Div Court, 2024) the Ontario Divisional Court dismissed a JR, here of "a decision of the Suspension and Exclusion Appeals Committee of the Renfrew County Catholic District School Board which denied four appeals by the applicant ... from suspension and exclusion orders".

Here the court reviews Education Act provisions and local school board policy relating to exclusion orders:

The Legal Framework

[15] The Education Act authorizes school principals to uphold a safe and positive learning climate within schools. Under the Act, a principal may rely on disciplinary measures, such as suspensions, or non-disciplinary measures, such as exclusion orders, to ensure a safe and positive learning climate.

[16] Subsection 306(1) of the Education Act sets out the activities that can lead to a suspension. These activities include “bullying” which is defined as follows:

“bullying” means aggressive and typically repeated behaviour by a pupil where,

(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,

(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property, or

(ii) creating a negative environment at a school for another individual, and

(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education;

[17] In certain circumstances, suspension is mandatory. Section 310 of the Education Act provides for the mandatory suspension of a pupil in the following specific circumstances:

(a) Bullying, if the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person;

(b) Any activity listed in subsection 306(1) of the Act that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor; and

(c) Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and, therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled.

Where a principal suspends a student under this section, s. 311.1(1) of the Act requires that there be an investigation into whether the student should be expelled.

[18] The respondent’s Safe Schools–Pupil Suspension Policy provides, amongst other things, that a principal may suspend a pupil if that pupil engages in certain activities at school, at a school-related activity, or in other circumstances where engaging in the activity will have an impact on the school climate. These activities include:

(a) Persistent opposition to authority;

(b) Conduct injurious to the moral tone of the school or to the physical or mental well- being of others in the school;

(c) Harassing another person by use of mechanical/electronic technology or communications; and

(d) Serious breaches of the Boards’ Code of Conduct or the School Code of Conduct.

[19] The respondent’s Policy on Safe Schools–Pupil Expulsion provides for the mandatory suspension of a pupil where that pupil has engaged in identified activities at school, at a school-related activity, or in other circumstances where engaging in the activity will have an impact on the school climate. Those activities include:

(a) Hate and/or bias motivated occurrences;

(b) A pattern of behaviour so refractory that the pupil’s presence is injurious to the effective learning of others; and

(c) Repeated and serious breaches of the Board Code of Conduct where all previous interventions and legal sanctions have proven ineffective.

[20] Paragraph 265(1)(m) of the Education Act requires a principal to refuse to admit to a school or classroom a person whose presence would, in the principal’s judgement, be detrimental to the physical or mental well-being of pupils. Subsection 3(1) of Access to School Premises, O. Reg 474/00, provides that a person is not permitted to remain on school premises where the principal, vice-principal, or another authorized person makes the determination under para. 265 (1)(m) of the Act.

[21] Where a principal is deciding whether to suspend a student under s. 306(1) or determining the length of a mandatory suspension under s. 310 of the Education Act, Regulation 472/07 requires the principal to consider mitigating factors including:

(a) The pupil does not have the ability to control his or her behaviour;

(b) The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; and

(c) The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.

[22] Although not required by the legislation, the respondent’s exclusion policy adopts the same mitigating features which are considered in the case of a decision to suspend a student from school.

[23] Finally, the respondent’s Safe Schools-Pupil Expulsion policy defines “hate and/or bias motivated incidents” as:

Hate-and/or bias motivated Incidents (e.g., involving statements, words, gestures) are motivated by hatred occurrences or bias towards an identifiable group (i.e., a group distinguished by colour, race, religion, gender, sexual orientation, or ethnic origin) that are publicly communicated and that are wilfully intended to promote or incite bias or hatred against such a group.